Jones v. Stebbins
| Decision Date | 30 September 1993 |
| Docket Number | No. 60036-8,60036-8 |
| Citation | 860 P.2d 1009,122 Wn.2d 471 |
| Parties | Walter JONES, Respondent, v. Arlen STEBBINS and Jane Doe Stebbins, husband and wife, Petitioners. En Banc |
| Court | Washington Supreme Court |
Murphy & Elgot, by Mark S. Elgot and Thomas H. Murphy, Seattle, for petitioners.
A. Graham Greenlee, Seattle, for respondent.
Petitioner Arlen Stebbins seeks review of a Court of Appeals decision which reversed the trial court's order of dismissal in favor of Stebbins, holding that service by mail is deemed accomplished on the date the summons and complaint are mailed. We accepted review and affirm the Court of Appeals.
On April 18, 1986, respondent Jones was injured by the allegedly tortious conduct of Stebbins. The facts involving the alleged tortious conduct will not be discussed in this opinion, as the issues here entail matters specifically pertaining to civil procedure. In July 1986, Jones initiated a lawsuit in King County against Stebbins. That action was dismissed without prejudice on January 27, 1989. Jones then filed a complaint on March 21, 1989, in King County Superior Court. This filing tolled the statute of limitations for 90 days. RCW 4.16.170.
On May 26, 1989, Jones hired a process server to perform personal service on Stebbins. The process server believed that he served Stebbins on June 15, 1989. The process server indefinitely postponed informing Jones' attorney of the service.
On June 19, 1989, 1 not having been notified of a successful personal service by the process server, Jones obtained an ex parte order allowing him to serve Stebbins by certified mail in lieu of service by publication. Jones mailed copies of the summons and complaint that day. Stebbins filed his notice of appearance on July 11, 1989.
On November 27, 1990, Stebbins filed his answer in which he raised the affirmative defense that the action was barred by the statute of limitations. Stebbins claimed he had not been served the complaint and summons until June 22, more than 3 years after the alleged tortious act and more than 90 days since the filing of the summons and complaint on March 21, 1989.
On April 15, 1991, Stebbins filed a motion to dismiss on the basis that the service by mail was not completed within the time allowed by the statute of limitations. Jones challenged the motion to dismiss on the ground that Stebbins had been personally served on June 15, 1989. The trial court entered an order dismissing the action on May 10, 1991. Jones' motion for reconsideration was denied by the trial court on June 7, 1991. On June 26, 1991, Jones filed a notice of appeal with the Court of Appeals.
The Court of Appeals reversed the trial court's dismissal and remanded the case for further proceedings. Jones v. Stebbins, 67 Wash.App. 896, 841 P.2d 791 (1992). During oral argument at the Court of Appeals, Jones asserted for the first time that the service by mail was valid pursuant to CR 4(d)(4). Although the Court of Appeals found no evidence that Stebbins had been personally served on June 15, 1989, the court held that Jones' substituted service by mail was timely under CR 4(d)(4). Jones, 67 Wash.App. at 899-900, 841 P.2d 791. The court stated that CR 4(d)(4)'s language "suggests that the date of mailing was intended as the date of completed service." Jones, 67 Wash.App. at 900, 841 P.2d 791. We granted Stebbins' petition for review. We affirm the Court of Appeals.
This case presents the issue whether service of the original process--summons and complaint--by mail is deemed complete upon mailing.
Under CR 4(d)(4), a party may conduct service by mail. A court will issue an order allowing service by mail when there are "circumstances justifying service by publication" and if the serving party demonstrates, by affidavit, facts which show that service by mail is just as likely to give actual notice as service by publication. CR 4(d)(4). Although the language in CR 4 is not explicit as to when service by mail is deemed complete, it provides that:
The summons shall contain the date it was deposited in the mail and shall require the defendant to appear and answer the complaint within 90 days from the date of mailing. Service under this subsection has the same jurisdictional effect as service by publication.
(Italics ours.) CR 4(d)(4).
Service by mail is also covered in CR 5. That rule provides that service by mail is
deemed complete upon the third day following the day upon which [the pleadings and other papers] are placed in the mail, unless the third day falls on a Saturday, Sunday or legal holiday ...
CR 5(b)(2)(A). The scope of CR 5's application is limited to "every pleading subsequent to the original complaint". (Italics ours.) CR 5(a).
Stebbins argues that the Court of Appeals improperly concluded that Jones' service of process by mail was timely. Stebbins contends the Court of Appeals' opinion is contrary to this court's rulings in Citizens Interested in the Transfusion of Yesteryear v. Board of Regents of the Univ. of Wash., 86 Wash.2d 323, 544 P.2d 740 (1976), and Nearing v. Golden State Foods Corp., 114 Wash.2d 817, 792 P.2d 500 (1990). Jones contends that the Court of Appeals' opinion is not in conflict with either Citizens or Nearing. We agree with Jones that the Court of Appeals' opinion is correct.
Court rules are construed using the rules of statutory construction. In re McGlothlen, 99 Wash.2d 515, 522, 663 P.2d 1330 (1983). "Where statutory language is plain and unambiguous, the statute's meaning must be derived from the wording of the statute itself." Bellevue Fire FightersLocal 1604 v. Bellevue, 100 Wash.2d 748, 750, 675 P.2d 592 (1984),cert. denied, 471 U.S. 1015, 105 S.Ct. 2017, 85 L.Ed.2d 299 (1985).
To resolve the issue before us, we must determine whether CR 4(d)(4) or CR 5(b)(2)(A) applies and when substituted service by mail of an original summons and complaint is deemed complete. We hold that service of the original summons and complaint by mail is complete upon mailing under CR 4(d)(4).
CR 4(d) describes the different methods by which service of the summons and complaint may be accomplished. Service and the filing of pleadings and other papers, subsequent to the original complaint, are covered under the auspices of CR 5. Accordingly, we conclude from the plain language of both CR 4 and CR 5 that CR 4 controls service of the original summons and complaint.
Under CR 4, "[t]he summons ... shall require the defendant to appear and answer the complaint within 90 days from the date of mailing." (Italics ours.) CR 4(d)(4). The plain language of CR 4(d)(4) is clear. See Bellevue, 100 Wash.2d at 750, 675 P.2d 592. Therefore, we hold that, pursuant to CR 4(d)(4), service by mail of the original summons and complaint is complete on the date of mailing. If this were not the case, language mirroring CR 5(b)(2)(A) or language to the effect that the defendant will "appear and answer within 90 days from the date of receiving the mailing" would have been used.
Stebbins argues that the Court of Appeals' determination that service was timely under CR 4(d)(4) is incorrect because it is contrary to the ruling in Citizens. We disagree. In Citizens, plaintiffs' initial suit was dismissed because of their failure to serve or file a summons with the complaint. Plaintiffs then filed a summons and "amended" complaint under the same cause number and subsequently mailed the summons and "amended" complaint to the defendants on the last day of the 90-day tolling period. Citizens, 86 Wash.2d at 325, 544 P.2d 740. The amendment was factually the original complaint. The court, relying on the presumption that "service by mail is not deemed complete until the third day following the date of mailing", ruled that the plaintiffs had not perfected their action within the 90-day tolling period. Citizens, 86 Wash.2d at 330, 544 P.2d 740 (citing CR 5(b)(2)(A) and Moore v. Wentz, 11 Wash.App. 796, 798-99, 525 P.2d 290 (1974)).
The Court of Appeals distinguished Citizens from this case, holding that CR 5 applies to the "service and filing of pleadings and other papers other than the original complaint", and therefore CR 5 did not apply "because the mailing in this case was of the original complaint." Jones, 67 Wash.App. at 900, 841 P.2d 791. The Court of Appeals also explained that the court in Citizens could not have considered the effect of CR 4(d)(4) on CR 5(b)(2)(A)'s language regarding the 3-day presumption since CR 4(d)(4) was not in effect when Citizens was decided. Jones, 67 Wash.App. at 900, 841 P.2d 791. We agree with the Court of Appeals and overrule Citizens to the extent that it holds that service of an original complaint is deemed complete on the third day after mailing under CR 5.
Stebbins also argues that CR 5(a), which limits the scope of CR 5's applicability to pleadings subsequent to the original complaint, does not apply to the remainder of CR 5. We disagree.
CR 5(a) describes what kind of papers are covered under the rule (everything subsequent to the original complaint) and who should be served those papers. Section (b) of CR 5 describes how those particular papers may be served. We find nothing in the plain language of CR 5(b)(2)(A) to indicate that the rule was meant to govern service of an original complaint.
Stebbins contends that the Court of Appeals' decision improperly permits service by mail (pursuant to CR 4(d)(4)) to toll the statute of limitations. According to Stebbins, the basis of the impropriety is that service by mail is not mentioned in RCW 4.16.170 as a method that will toll the statute of limitations and is therefore contrary to this court's holding in Nearing v. Golden State Foods Corp., supra. We disagree.
RCW 4.16.170 provides:
For the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is served whichever occurs first. If service has not been had on...
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Table of Cases
...46 Wn. App. 275, 730 P.2d 112 (1986): 21.5, 21.5(1)(c) Jones v. State, 170 Wn.2d 338, 242 P.3d 825 (2010): 21.3(2) Jones v. Stebbins, 122 Wn.2d 471, 860 P.2d 1009 (1993): 11.4(2) Joyce v. Dep't of Corr., 155 Wn.2d 306, 119 P.3d 825 (2005): 11.7(2)(a)(iii) J.R.H., In re, 83 Wn. App. 613, 922......
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§4.8 Strategic and Practical Considerations
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§4.7 Significant Authorities
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§ 11.4 Case Law Exceptions to The General Rule
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